Captain Harish Uppal Vs. Union of
India & Ors  INSC 284 (27 November 1972)
CITATION: 1973 AIR 258 1973 SCR (2)1025 1973
SCC (3) 319
RF 1991 SC 564 (5) RF 1991 SC1070 (6)
Army Act, 1950, Sections 158 and 160-Upward
revision of sentence Whether violative of natural justice principle in the
circumstances of the case.
Army Act, Section 160-Whether opportunity to
be heard necessary when Confirming Officer decides to send back the matter to
the Court Martial for considering upward revision of the sentence.
Army Act , Sections 112 and 157-Whether the
words 'authority' and Officer denote different authorities.
Army Act, Section 164-Whether opportunity to
be heard necessary before confirmation of upward revision of sentence by the
Army Chief of the Staff.
The petitioner was found guilty by the Court
Martial (acting under the Army Act) under section 392 IPC of committing
robberies of a bank property and the private property of the Manager and peons
of the Batik during the period of the liberation of Bangladesh, in Bangla Desh.
The Court Martial sentenced the petitioner 'to be cashiered'. When the matter
went to the Officer Commanding under whom the petitioner was working as an
Officer, for confirmation of the sentence u/s 153 of the Act, he returned the
same to the Court Martial for re-considering whether the upward revision of
sentence was necessary in the light of the observations made by the Confirming
Officer. The Confirming Officer had pointed out in his report that the
robberies were committed during the liberation of Bangladesh where the Indian
Forces had gone as liberators and as guardians and custodians of the life and
property of the people of Bangladesh. Considering the nature aid gravity and
maintenance of high standard of discipline in the Armed Forces, the sentence
awarded was not commensurate. The Confirming Officer further directed that the
delinquent officer should be given opportunity to address the Court, if he so
de-sired, if the Court decides to enhance the sentence. In the fresh
proceedings before the Court Martial, the Officer did not present himself. The
Court Martial revoked the earlier sentence and sentenced him to be cashiered
and to suffer rigorous imprisonment for two years. The said sentence was duly
confirmed by the Chief of the Army Staff. in the petition challenging the
legality of the order under Art., 32 of the Constitution, the petitioner
contended that the impugned order was bad for the violation of the principle of
natural justice inasmuch as that the Court Martial while re-considering the
sentence did not act as a free agent, that no opportunity of being heard was given
to the Officer at the time of remand and at the time of the final confirmation
by the Army Chief of the Staff and that the revision was recommended by an
officer subordinate in rank to the officer who convened the Court Martial.
In dismissing the petition,
HELD : (i) Sec. 158 of the Army Act describes
the procedure regarding the re-consideration of the sentence by the Court
Martial. In considering a petition filed under Art. 32 of the Constitution, the
only relevant Article is Art. 21, and the procedure established by law has been
corn1026 pletely followed in this case. The circumstances requiring the
reconsideration pointed out by the Officer Commanding were unexceptionable and
there was no violation of the principle of natural justice. The petitioner
failed to appear before the Court Martial in the fresh bearing. [1031 C-D] A.
K. Kraipak & Ors. Etc. v. Union of India and Ors.
(1) SCR 457 and Purtabpore Co. Ltd. v.
Cane Commissionerof Bihar & Ors.  (2) SCR 807, distinguished.
(ii) No opportunity to be heard was necessary
before the Confirming Officer formed the opinion to send the case back to the
Court Martial for re-consideration of sentence. [1032 C] (ii) The words 'authority'
and 'Officer' in Sec. 112 of the Army Act have one and the same meaning. The
Officer recommending the reconsideration of the sentence was also an Officer
commanding the Division though he was only officiating and was a Brigadier. The
actual confirmation of the enhanced sentence was made by the Chief of Army
Staff who was higher in rank than the convening Officer. [1033 C] (iv) In the
face of the very clear indication in the Constitution, the provisions of Code
of Criminal Procedure cannot be adopted in respect of Court Martial. It
",as open to the petitioner to make a petition to the Chief of the Army
Staff under section 164 of the Army Act which he did not do. [1O33 H]
ORIGINAL JURISDICTION : Writ Petition No. 456
Petition under Article 32 of the Constitution
of India for a writ in the nature of habeas corpus.
A. K. Sen and B. Datta for the petitioner.
F. S. Nariman. Addl. Solicitor-General of
India, B. D. Sharma and S. P. Nayar for the respondents.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J. The petitioner was an officer of the Indian Army who served in
Bangla Desh. On 11th December, 1971 he was in a place called Hajiganj. He was
tried before the Summary General Court Martial on the charge of committing
robbery at Hajiganj by causing fear of instant hurt to the Custodian of the
United Bank Ltd., of certain properties belonging to the Bank and also the
personal property of the Manager of the Bank as well as of a Chowkidar of the
Bank. The Court sentenced the petitioner to be 'cashiered'. This sentence was
subject to confirmation under the provisions of Chapter XII of the Army Act,
Maj-Gen. Hira, General Officer Commanding, 23 Mountain Division, of which the
petitioner was an officer, passed an order directing the revision of the
sentence. Thereafter the petitioner was brought before the same Court Martial,
as had tried him earlier, and he was asked whether he wanted to address the
Court. On receiving a reply in the negative, the Court, after considering the observations
of the confirming authority, revoked the earlier sentence which they had
imposed on the petitioner and sentenced him to be cashiered and 1027 to suffer
rigorous imprisonment for two years. Brig. D. P.
Bhilla, the Officiating General Officer Commanding
23 Mountain Division, referred the finding and sentence for confirmation to the
Chief of the Army Staff, who in due course confirmed the finding and the
sentence. The present petition is filed under Article 32 of the Constitution
for quashing the order passed by the Chief of the Army Staff, after setting
aside the order passed by Maj-Gen. Hira.
Shri A. K. Sen appearing on behalf of the
petitioner raised four points in support of his contention that the order
passed against, the petitioner should be quashed:
1. The authority to confirm the sentence
passed by a Court Martial does not confer on the confirming authority the power
to enhance the sentence. That authority cannot, therefore, achieve that object
indirectly by directing the revision of the sentence. The Court Martial's
verdict should be unfettered.
2. In any case, the confirming authority
should have given a hearing to the affected party.
3. The confirmation can be made only by the
officer who convened the Court Martial and not by a different officer as was
done in this case.
4. The officer who finally confirmed the
sentence on the petitioner should also have heard the petitioner.
(1) The officer who convened the Summary
General Court Martial, which tried the petitioner, was Maj-Gen. Hira. It was he
that directed the revision of the sentence passed on the petitioner. The
argument is that this order was in such terms that the Court Martial which
revised the sentence was compelled to and was left with no alternative but to
enhance the sentence and that this was against all principles of natural
justice. Under Section 153 of the Army Act no finding of a Court Martial shall
be valid except so far as it may be confirmed as provided under the Act'.
Under Section 157 the findings and sentences
of summary general courts-martial may be confirmed by the convening officer or
if he so directs, by an authority superior to him. Under Section 158, a
confirming authority may, when confirming the sentence of a court-martial,
mitigate or remit the punishment thereby awarded, or commute that punishment
for any punishment or punishments lower in the scale laid down in section 71.
Under Section 160, any finding or sentence of a court-martial which requires
confirmation may be once revised by order of the confirming authority and on
such revision, the court, if so directed by the confirming authority, may take
Even after revision the sentence passed
14-L52LSupCI/73 1028 by the court martial would have to be confirmed because of
provision of Section 153. The order passed by Maj-Gen.
Hira directing revision of the sentence
passed by the court martial is as follows :
"The Summary General Court Martial,
which assembled at Field, on 9 March 1972 and subsequent days for the trial of
IC-16394 Substantive Lieut (Actg. Capt.) HARISH UPPAL, Arty, 198 Mountain
Regiment, will reassemble in open court on 15 May 1972 at Field at 1000 hrs for
the purpose of reconsidering the sentence awarded by it, whilst in no way
intending the quantum of punishment to be awarded, the court should fully take
into consideration the following observations of the Confirming Officer.
2. The accused was convicted by the Court,
under Army Act Section 69 for committing a civil offence, that is to say,
Robbery, contrary to section 392 of the Indian Penal Code, the particulars
hereby averred that he, at HAJIGANJ (BANGLA DESH) on 11 December 1971, by
causing fear of instant hurt to the Custodians committed Robbery in respect of
the under mentioned articles, the property belonging to the persons indicated
as follows (a) The property of the United Bank Ltd. COMILLA Dist.
(i) Cash in Pakistan Currency. Rs. 11,222.91
(ii) 28-12 Bore guns Registered Two with s No. 027373 and 342. cartridges.
(iii) Wall clock. One (iv) Telephone Set Auto
TIP One (Sky Blue) (v) Telephone CE without One hand set (Black) (vi) Pens
(eagle) Two (vii) Locks with four keys TWO (viii) Winter uniform of peons and
Two pairs guard.
(b) Personal property of Shri MAKALAM,
Manager, United Bank Ltd., HAJIGANJ Branch:
Wrist Watch (Romer popular) One (c) Personal
property of Shri Habibullah, Chowkidar, United Bank Ltd., Hjiganj Branch:
PAKISTAN Currency Rs. 6/1029
3. It is, therefore, apparent that apart from
the property of the United Bank, Ltd., the accused committed robbery in respect
of the personal properties of its two custodians at a time when the War of
liberation of BANGLADESH was still being waged on some fronts though the
hostility in the town had ceased in HAJIGANJ area and the situation was fast
returning to normalcy.
4. It would be appreciated that the charge of
which the accused was convicted is of a very serious nature. The punishment of
'Cashiering, therefore, awarded for the offence appears to be palpably lenient.
The maximum punishment provided for the offence under IPC Sec. 392 is 10 years
RI. Even though the proper amount of punishment to be inflicted is the least
amount by which discipline can be effectively maintained, it is nevertheless
equally essential that the punishment awarded should be appropriate and
commensurate with the nature and gravity of the offence and adequate for the
maintenance of the high standard of discipline in the Armed Forces. It should
be clearly borne in mind that our Forces had been ordered to march into
BANGLADESH as the liberators of the oppressed people who had been subjected to
untold torture and miseries at the hands of Pak troops. It is, therefore, clear
that our Forces had gone there as guardians and custodians of the lives and
property of the persons of that country. The conduct of the accused by
indulging in broad day light bank robbery is despicable and his stooping so low
as to deprive Shri HABIBULLAH (PW-2), Chowkidar of the United Bank Ltd., of
paltry amount of Rs. 6 in Pak currency as also his taking away the Romer Wrist
watch from Shri MAKALAM (PW-4), Manager of the said Bank, is indeed highly
reprehensible. Such actions on the part of responsible officer of the Indian
Army are calculated to bring a blot on the fair name of the Indian Army. It is,
therefore, our imperative duty to ensure that such cases dealt with firmly when
a verdict of guilty has been returned by the court.
5. There are certain norms and standards' of
behaviour laid down in the Armed Forces for strict adherence by persons who
have the honour to belong to the Corps of Officers of the Indian Army. A person
of the rank, of an officer, who indulges in such an offence, should, therefore,
be awarded suitable punishment. In the course of six years commissioned service
he had once been convicted under Army Act Sect-ion 41(2) for 1030 disobeying a
lawful command given by his superior officer in the execution of his duties for
which he was severely reprimanded on 13 June 1970.
6. The accused/or his defending
officer/counsel should be given an opportunity to address the court, if so
The court should then carefully consider all
the above and should they decide to enhance the sentence, then the fresh
sentence should be announced in open court as being subject to confirmation.
7. The, attention of the court is drawn to Army
Act Section 160, Army Rule 68 and the form of proceedings on revision given on
page 370 of N1ML (1961 Reprint), which should be amended to conform to the
provisions of Army Rule 67(1).
8. After revision, the proceedings shall be
returned to this Headquarters.
Sd/(R. D. HIRA) Maj-Gen.
General Officer Commanding 23 Mtn Div.
Field 03 May 1972.
It was contended that in the face of such
strong observations by the General Officer Commanding the Division the officers
constituting the court martial would have felt compelled to enhance the
sentence and the revised sentence passed on the petitioner was not the free act
of the court martial but one forced on them by the Officer Commanding and that
this militates against the principle of natural justice. But it should be
remembered that under the provisions of the Army Act set out earlier the
confirming authority could himself mitigate or remit the punishment awarded by
the court martial or commute that punishment for any lower punishment and,
therefore, when a sentence is directed to be revised by the confirming
authority it necessarily means that the confirming authority considers that the
punishment awarded by the court martial is not commensurate with the offence
and it should, therefore, be revised upwards. To object to this is to object to
the provisions of section 158 itself. A direction by the confirming authority
merely showing that the punishment awarded by the court martial is not
commensurate with the offence, would be certainly unexceptionable and would be
in accordance withthe provisions of law. Instead of baldly stating so the
confirming authority in this case has given reasons as to why he considers that
the punishment awarded to the petitioner was wholly inadequate.
1031 We consider that the reasons, given by
him cannot be taken exception to. It was urged that the confirming authority
proceeded on the basis that in respect of the charges against the petitioner
the evidence available was as he had set out in his order directing revision
and that this was not correct. We must point out that this Court cannot go into
the evidence in support of the charge against the petitioner. Indeed the court
martial itself could not have set out the evidence against the petitioner; it
should have only given the finding and the sentence. Under the provisions of
Article 136(2) of the Constitution this Court cannot grant special leave in
respect of any judgment, determination or order passed or made by any court or
tribunal constituted by or under any law relating to the Armed Forces. In
considering a petition filed under Article 32 of the Constitution this Court
can only consider whether any fundamental right of the petitioner has been
violated and the only Article relevant is Article 21 of the Constitution. There
is no doubt that the procedure established by law as required under that
Article has been completely followed in this case.
It is, however, urged that the decisions of
this Court have laid down that the rules of naturaljustice operate in areas not
covered by any law validly made and that they do not supplant the law of the
land but supplement it and, therefore, though the procedure established by law
may have been followed as required under Article 21, the principles of natural
justice should also be followed. The cases relied on are A. K. Kraipak &
Ors. etc. v. Union of India & Ors. (1) and Purtabpore Co. Ltd. v. Cane
Commissioner of Bihar & Ors. (2). This Court in the first decision had
pointed out that what particular rule of natural justice should apply to a
given case must depend to a great extent on the facts and circumstances of that
case, the frame work of the law under which the enquiry is held and the
constitution of the tribunal or body of persons appointed for that purpose. It
was also pointed out that the Court has to decide whether the observance of
that rule was necessary for a just decision and that the rule that enquiries
must be held in good faith and without bias and not arbitrarily or unreasonably
is now included among the principles of natural justice. There is no analogy
between the facts of that case and the present and applying the ratio of that
to the facts of this case we are not satisfied that any rule of natural justice
has been violated. The latter was a case where the authority competent to pass
the order had simply passed an order adopting what the Minister had directed
and had not applied his mind. The facts of this case are quite different. The
confirming authority while pointing out the facts had left the discretion
regarding the punishment to be imposed to the court (1)  1 S.C.R. 457.
(2)  2 S.C.R. 807 1032 martial. If the
court martial in spite of the direction given by the confirming authority had
reaffirmed its original order, the confirming authority could do nothing
because it can exercise its power of directing revision only once, and that
power was already exhausted. Furthermore, when the court martial reassembled to
revise its earlier order under the directions of the confirming authority, the
petitioner was given the reasons of the confirming officer for requiring
revision and asked whether he wanted to address, the court, he replied in the
negative. It was open to him to have pointed out to the court martial how the
observations of the confirming authority were wrong, how they were not borne
out by the evidence on record. Having failed to avail himself of the opportunity
accorded to him, the petitioner cannot be now heard to complain that he was not
given an opportunity by the confirming authority before he directed revision.
The court martial had originally found the petitioner guilty of the charge of
robbery, under Section 392 of the Indian Penal Code. There was, therefore, no
question of the court martial, when it proceeded to reconsider the matter, of
reconsidering the finding of guilty. Therefore, any attempt to question the
order of the confirming authority on the basis that he relied upon facts which
were not proved for directing revision, is wholly beside the point. And as far
as the question of sentence is concerned, one cannot quarrel with the
sentiments expressed by the confirming authority. We find ourselves unable,
therefore, to agree to petitioner's contention that the order of the confirming
authority directing revision is in any way vitiated.
(2) We have already held above that the
confirming authority, when he directed a revision of the sentence passed on the
petitioner, was only exercising the powers conferred on him by Section 160 of
the Army Act. He also made it clear,. that the court martial was not bound by
his opinion by stating that should the court martial decide to enhance the
sentence the fresh sentence should be announced in open court as being subject
to confirmation. Right in the beginning of his order he had also stated 'Whilst
in no way intending the quantum of punishment to be awarded, the court should
fully take into consideration the following observations'. To hold in the
circumstances that the confirming authority should have, heard the appellant
before he directed the revision of the sentence passed on him would not be a
requirement of principle of natural justice. In the circumstances and facts of
a case like the present one where the petitioner had an opportunity of putting
forward whatever contentions he wanted to rely upon before the court martial,
we do not consider that there is any substance in this contention.
3) The contention here was that while the
court martial was convened by a Maj-General the officer who directed revision
was a Brigadier, and that only the convening officer can confirm or 1033 direct
revision. This is perhaps the one contention with the least substance put
forward on behalf of the petitioner.
The contention is based on the words found in
Section 157 of the Army Act that the findings and sentences of summary general
courts-martial may be confirmed by the convening officer or if he so directs,
by an authority superior to him. The words 'convening officer' and 'an
authority superior to him are sought to be contrasted and it is argued that
while a confirmation can only be by a convening officer and by no other, the
authority superior to hi-in may also confirm showing that in the latter case
neither the rank of authority nor the person holding the post is relevant.
Section 112 of the Act which deals with the
power to convene a summary general court martial shows that this attempted
distinction between "authority" and "officer" is without
substance. The officer is the authority and the authority is the officer. Both
the words refer only to one person.
To accept this argument would mean that if
the officer who convened the court martial is transferred to a distant place or
retires or is dead, the whole procedure would have to be gone through again. A
useful comparison will be of decisions under Article 311 of the Constitution
where it has been held that the power to dial with an officer under that
Article can be exercised even by an authority lower in rank to the authority
which originally appointed the officer, if at the, relevant period of time that
authority was competent to appoint the officer sought to be dealt with. It may
be noted that in this case the officer who convened the court martial was a
Maj-General Officer Commanding the 23rd Mountain Division, and the officer who directed
that the findings and sentence should be confirmed by the Chief of Staff was
also the officer Commanding the same Division, though he was only officiating
and was a Brigadier. The confirmation itself was by the Chief of Army Staff,
higher in rank than the convening officer.
(4) The contention that Bring Bhilla should
either have given a hearing to the petitioner or the Chief of Army Staff should
have given a hearing to the petitioner before confirming the subsequent
sentence by the court martial is not a requirement under the Act. While it can
be at least said that there is some semblance of reasonableness in the
contention that before he ordered what in effect was an upward revision of the
sentence passed on the petitioner, he should have been given a hearing, to
insist that the confirming authority should give a hearing to the petitioner
before it confirmed the sentence passed by the court martial, is a contention
which cannot be accepted. To accept this contention would mean that all the
procedure laid down by the Code of Criminal Procedure should be adopted in
respect of the court martial, a contention which cannot be accepted in the face
of the very clear indications in the Constitution that the provisions which are
1034 applicable to all the civil cases are not applicable to cases; of Armed
Personnel. It is not a requirement of the principles of natural justice. Indeed
when he was informed that the subsequent sentence passed on him had been sent
to the Chief of the Army Staff for confirmation it was open to the petitioner
to have availed himself of the remedy provided tinder Section 164 of presenting
a petition to the confirming officer, i.e. the Chief of the Army Staff in this
case. He does not appear to have done so.
We are, therefore, of the opinion that there
are no merits in this petition and dismiss it.
S.B.W. Petition dismissed.